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HIV Criminalization

Nick Rhoades was clerking at a Family Video store in Waverly, Iowa, one summer afternoon in 2008 when three armed detectives appeared, escorted him to a local hospital and ordered nurses to draw his blood. A dozen miles away, his mother and stepfather looked on as local sheriff’s deputies searched their home for drugs — not illegal drugs, but lifesaving prescription medications.

Lab results and a bottle of pills found in the Rhoades’ refrigerator confirmed the detectives’ suspicions: Nick Rhoades was HIV-positive.

Almost a year later, in a Black Hawk County courtroom, Judge Bradley Harris peered down at Rhoades from his bench.

“One thing that makes this case difficult is you don’t look like our usual criminals,” Harris said. “Often times for the court it is easy to tell when someone is dangerous. They pull the gun. They have done an armed robbery. But you created a situation that was just as dangerous as anyone who did that.”

Nick Rhoades was sentenced to 25 years in prison for having sex without disclosing his HIV status — even though he used a condom, was taking medication to suppress the virus, and didn’t actually transmit HIV.
At least 35 states have laws that specifically criminalize exposing another person to HIV — whether or not the virus is actually transmitted. In 29 states, it’s a felony.
HIV is singled out. While some states have laws that specifically punish exposure to tuberculosis, syphilis or “venereal diseases,” HIV exposure is almost always punished more severely.
Laws against HIV exposure sometimes criminalize acts that can’t transmit HIV. For example, some laws punish people with HIV for spitting on and scratching other people, even though the CDC says the virus cannot be transmitted in those ways.
Law enforcement and public health, which have traditionally been kept separate, now overlap. In several states, prosecutors have forced health officials to hand over medical records, such as HIV test results.
The judge meted out Rhoades’ sentence: 25 years in prison.

His crime: having sex without first disclosing he had HIV.

Officially, the charge, buried in Chapter 709 of the Iowa code, is “criminal transmission of HIV.” But no transmission had occurred. The man Rhoades had sex with, 22-year-old Adam Plendl, had not contracted the virus.

That’s not a surprise, because Rhoades used a condom.

And medical records show he was taking antiviral drugs that suppressed his HIV, making transmission extremely unlikely. A national group of AIDS public health officials later submitted a brief estimating that the odds of Rhoades infecting Plendl were “likely zero or near zero.”

After his lawyers petitioned the court, Rhoades’ prison sentence was changed to five years’ probation. But for the rest of his life — he is 39 — he will remain registered as an aggravated sex offender who cannot be alone with anyone under the age of 14, not even his nieces and nephews.

Rhoades’ is not an isolated case. Over the last decade, there have been at least 541 cases in which people were convicted of, or pleaded guilty to, criminal charges for not disclosing that they were HIV-positive, according to a ProPublica analysis of records from 19 states. The national tally is surely higher, because at least 35 states have laws that specifically criminalize exposing another person to HIV. In 29 states, it is a felony. None of the laws require transmission to occur.